Feel free to contribute on burning issues concerning the armed forces. Contributions would be acknowledged - Use the 'Comments' tab or email navdeepsingh.india[at]gmail.com. No operational/business/commercial matters to be discussed please. Legal advice/litigation related issues would strictly NOT be published or discussed or entertained. Information on this blog is opinion based and is neither official nor in the form of an advice. This is a pro bono online journal in public service related to issues, policies and benefits, and the idea behind it is to educate and not to create controversy or to incite. Be soft in your language, respect Copyrights.

Followers

Tuesday, December 12, 2017

High Courts must not be regarded as stepping stones to onward appeals to SC

Navdeep Singh

It was heartening to note
the statement of the President of India on occasion of the National Law Day
stressing upon affordability and access to justice and expressing concern on
judicial delays. Important issues indeed which bother all stakeholders, but
unfortunately these aspects are like an unruly horse unwilling to be tamed for
a variety of stated and unstated reasons. The leading reason being that the
hierarchy of courts is now merely being used as a stepping stone to reach the
Supreme Court as a routine rather than looking for quietus or culmination of litigation at much lower levels thereby leaving
time and space for the SC for cases of general public importance or major constitutional
issues.

In a federal structure,
though it may come as a surprise to many, as far as certain powers are
concerned, the High Courts and the Supreme Court are equal, with the HC in fact
wielding a wider writ jurisdiction under Article 226 than the SC under Article
32. The SC does not even exercise superintendence over High Courts as HCs do over
lower Courts. The superiority of jurisdiction of SC over HCs is primarily appellate
when orders of the HC are challenged. The high majesty of High Courts however
today is under threat since litigants opt to test every small error till the SC
with the latter ending up exercising correctional jurisdiction than being
granted the legroom to adjudicate major issues requiring its attention. Coupled
with this there is the inexplicable system of providing direct appeals from
certain tribunals to the SC in contravention of a Seven Judge Constitution
Bench decision in L Chandrakumar’s
case (1997). All this not only leads to delay, costs and overburdening of the
highest Court of the land with innocuous and minor matters, but also results,
at times, in seemingly conflicting decisions by different benches leading to
lack of judicial certainty and judicial confusion for lower fora resulting in
multiple little Supreme Courts within the SC, besides making justice extremely
unaffordable and inaccessible for the citizenry, though, ironically, access to
justice is a recognized fundamental right.

A Constitution Bench had
this to observe in Bihar Legal Support
Society vs CJI (1986):

“It
may, however, be pointed out that this Court was never intended to be a regular
court of appeal against orders made by the High Court or the sessions court or
the magistrates....This extraordinary jurisdiction could be availed by the apex
court for the purpose of correcting grave miscarriage of justice, but such
cases would be exceptional by their very nature...We must realise that in the
vast majority of cases the High Courts must become final even if they are
wrong...We must, therefore, reconcile ourselves to the idea that like the apex
court which may be wrong on occasions, the High Courts may also be wrong and it
is not every error of the High Court which the apex court can possibly
correct...this Court should not ordinarily, save in exceptional cases,
interfere with orders granting or refusing bail or anticipatory bail, because
these are matters in which the High Court should normally be the final
arbiter.”

Indeed, a hierarchy of
Courts is also required in every democracy. A multi-layered appellate or
judicial review process is much desirable since judicial errors in appreciation
or application of law cannot be ruled out. But the question only is whether all
routes should ultimately lead to the SC?

Rather than embarking upon
the concept of a Court of Appeal between the HC and the SC, as suggested by
some, and which may require constitutional amendment, I would like to think
that restoring the majesty of the HC back to what the Constitution envisaged,
along with certain minor doable adjustments within the existing set-up, could
help. The following ideas hence come to mind:

1. Introducing
Intra-Court/Letter Patents Appeal from Single Bench decisions to Division Benches
within the same HC for multiple and more jurisdictions rather than the very
narrow scope as is prevalent.

2. Abrogating direct appeals
from tribunals to the SC and instead Division Benches of HC exercising time-bound
judicial review over all tribunals as also recommended recently by the Law Commission
in its 272nd Report.

3. Supreme Court sitting in
larger benches, if not en bloc, to
prevent conflicting decisions and judicial uncertainty and exercising
jurisdiction only in rarest of rare cases of grave miscarriage of justice,
questions of law of general public importance, issues involving two or more
States and matters of Constitutional interpretation and the scope thereof also defined
as objectively as possible.

4. Restoring the
Constitutional majesty of the HC as practically the highest court and
preventing it from being used merely as a stepping stone for onward appeal to
the SC.

While it would take some
effort to return our Constitutional Courts to their true roles, to implement
what the President expressed the greatest responsibility to reduce judicial
burden as also needless litigation falls upon instrumentalities of the
government which file appeals to the next judicial level without batting an eye
at taxpayers’ expense not out of judicial necessity but due to egotism and a
faux sense of prestige of certain personalities that is hurt on losing a case.
The buck also stops at our community- the lawyers and bar associations, to ensure
a well-balanced and well-oiled machinery where dispensation of justice is
quick, affordable & accessible and a quietus
is reached at the optimum level without prolonging the agony. I need not say
more.